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The European Union—A Federation Or a Confederation?

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The European Union—A Federation Or a Confederation? European Union—A Federation or a Confederation? The European Union—A Federation or a Confederation? Gabriel Hazak Tallinn University of Technology Akadeemia tee 3, Tallinn 12618, Estonia e-mail: [email protected] Abstract: The question about the essential nature of the EU (a federation or a confederation?) is a fundamental yet controversial issue, which has provoked plenty of debate. The fact that different attitudes are frequently accompanied by equivocation and manipulation with concepts and terms, which carries an undisguised political (more often than not a populist) connotation, is particularly annoying. The article seeks to analyse, primarily from the legal point of view, the current developments in the EU, first and foremost in the light of institutional competence. There is an obvious trend towards increased competence of the Union which makes it possible to conclude that the European Union is moving towards a federation, being more a federation than a confederation even today. Taking into account the understandable interest of the nation states, the EU could be called the United National Democratic States of Europe in the future. It would definitely not refer to a classical model of a federal state (à la the USA). Naturally the peculiarities, culture and traditions of a nation state—the national identity as a whole—could not be ignored. It unarguably is a phenomenon the novelty and many-sided essence of which deserve consistent and thorough scientific analysis, in spite of the relative delicacy of the problem. Therefore it has quite often been carefully alleged that the EU is a “union of states which lies between confederation and federation” (Laffranque, 2006, p. 151). Keywords: competence of the Union, European Union, federation and confederation, sovereignty Baltic Journal of European Studies 43 Tallinn University of Technology (ISSN 2228-0588), Vol. 2, No. 1 (11) Gabriel Hazak 1. Introduction This rhetorical and in many respects over-politicised issue becomes topical, time and again, for different reasons or occasions. Estonia experienced it at the end of the 1990s and the beginning of this century, when the long and complex negotiations on Estonia’s accession to the European Union were underway (1998–2002). The issue culminated before the referendum held on 14 September 2003, when two thirds of the voters said ‘yes’ to the accession and relevant constitutional amendments, but one third was negative towards the EU. The threat that Estonia, which had recently restored its independence, would be deprived of its sovereignty again was the sceptics’ main argument. The fiercest critics of the movement even threatened that the former dictate of Moscow would be replaced by the Brussels’ one. Why could Estonia not be a truly independent and sovereign country, such as Switzerland, for example, or why could it not follow either Norway or Iceland as a role model—were the most often asked questions. The author’s answer would be: unfortunately Estonia is neither Switzerland nor Norway: its level of development compared to either of these countries is very dissimilar due to several reasons. The geopolitical location of Iceland, compared to that of Estonia, is completely different (the distance from the main continent provides certain advantages and also audacity which, by the way, manifested itself in the act of recognising the newly restored independence of Estonia). Furthermore, the probability that any of the abovementioned countries would deem it necessary to join the EU one day cannot be excluded either. With regard to the particular dispute—a federation or a confederation— the importance of the formal meaning of concepts (names) should not be overestimated. For instance, the official name of Switzerland is Swiss Confederation but in reality it is a typical federation (26 cantons and a bicameral federal parliament). The Soviet Union considered itself as a federation which consisted of union republics but, as a matter of fact, it was a unitary state based on a single-party political system. The problem lies in the whole essence and organisation of the state, not in its name. In the debate about Estonia’s accession to the EU—whether the decision was a right one or not—the author’s own preference has always been, and he has also encouraged everyone else, to approach the issue as a dilemma: if it was not a right decision, what could have been a reasonable alternative? The emphasis has been placed on the word reasonable here. Regrettably, there have not been any sensible or well-reasoned answers yet. 44 Baltic Journal of European Studies Tallinn University of Technology (ISSN 2228-0588), Vol. 2, No. 1 (11) European Union—A Federation or a Confederation? Without letting himself to be disturbed by the pre-election tactics of different political powers or other narrow interests, including psychological-emotional means of influencing (a fear of being deprived of statehood, a threat of being controlled by foreign powers again, etc.), the author is trying to objectively analyse the principal characteristics of a federation and confederation—their essence in terms of differences and similarities from institutional as well as functional aspects. A unitary state and a classical international institution will be excluded, as it is evident that regarding the structure and relationship between its constituent countries the European Union is neither of them. It is essential to get to the heart of the problem and comprehend where the union, which had only six founder members in 1952 (currently 27), is heading for, and which way should this structure be seen and evaluated as a whole. The question which option is better—a federation or a confederation—should be discarded here, as the answer always depends on specific circumstances which could be entirely different in time and space. In the author’s opinion federations can be totally different in terms of internal coherence, and the same applies to a confederation. Some contrasting examples could even be given: in the USA, which is a federation, the capital punishment, the death penalty, is applied in 37 states out of 50; at the same time all the EU Member States have signed up to the European Convention on Human Rights, which has abolished the capital punishment. A few concepts, closely related to the topic, should also be clarified before dealing with the main issue: a state’s sovereignty and independence. Pursuant to Chapter I, Section 1 in the Constitution of the Republic of Estonia, the country is an independent sovereign democratic republic wherein the supreme power of the state is held by the people; Section 2 stipulates that Estonia’s independence and sovereignty is interminable and inalienable. Estonian Encyclopaedia refers to sovereignty as absolute political (involving domestic as well as foreign policy) independence from other countries (EE, 1996). One can conclude here that independence and sovereignty are the same, as if they were synonyms. However, in Chapter I of the Constitution of Estonia these concepts are used separately. Therefore a certain inconsistency can be identified here. What do these two concepts actually mean, where does their difference lie? According to classical theories, a present-day state as a differentiated organisation has three characteristics: a territory, nation and organisation of public power. Actually, the fourth characteristic has increasingly often been mentioned in the field-specific literature—an actual ability to be a full subject of international communication, that is, a subject of international law. Baltic Journal of European Studies 45 Tallinn University of Technology (ISSN 2228-0588), Vol. 2, No. 1 (11) Gabriel Hazak The concept of sovereignty has not been explicitly included in the Constitution of the Estonian Republic but the meaning has been hidden in the first paragraph of Chapter I, which stipulates that the supreme power of the state is held by the people. The sovereign of a country is people as the supreme power—people as citizenry, not as population, ethnos or just a big crowd of people. Sovereignty could principally be approached in two dimensions: internally, inside the country it refers to the monopoly of the public power, which manifests itself in the establishment of relevant rules which apply to every person who is lawfully staying within their territory. In other words, a state has established the legislative, executive and judiciary power. It has a head of state and requisite inspection mechanism, including state audit office, legal chancellor, ombudsman, etc. These institutions enable a country to execute itself as a state. That kind of internal dimension of sovereignty is a country’s independence. However, an independent country also executes itself externally: diplomatic relations, participation in international organisations, etc. Herein the independent sovereign states respect other countries’ independence, their sovereign rights and interests; they possess equal rights to conclude agreements with them, etc., which all represent the external dimension of sovereignty—a country’s independence. This is a country’s ability to execute its independence as independently from external factors and influences as possible. Internationally, sovereignty indicates a country’s immediate subordination to international law exclusively, not to any other subject of international law (a foreign country or international organisation). Although it should be admitted that in the present day world not a single state, including the
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